Griffin v. Board of Mississippi Levee Commissioners

• Decision Date: 26 March 1894
• Citation: 71 Miss. 767,15 So. 107
• Court: Mississippi Supreme Court
• Parties: J. L. GRIFFIN ET AL. v. BOARD OF MISSISSIPPI LEVEE COMMISSIONERS

15 So. 107

71 Miss. 767

J. L. GRIFFIN ET AL. v. BOARD OF MISSISSIPPI LEVEE COMMISSIONERS

Supreme Court of Mississippi

March 26, 1894

March 1894

FROM the circuit court of Washington county, HON. R. W WILLIAMSON, Judge.

The Board of Mississippi Levee Commissioners brought this suit in the court below against the appellant, Griffin, and the sureties on his bond as tax-collector of Washington county to recover money collected by said Griffin as taxes, and not paid over to the board as required by law. The defendants pleaded in abatement the pendency of a prior suit in the chancery court of said county, brought by Wirt Adams, state revenue agent, for the use of plaintiff on the same cause of action for the same breach, and to recover the same debt sued for in this action.

The defendants also pleaded in bar that the money was collected by said Griffin as tax-collector during the latter part of the month of December, 1891; that he collected for the state county and the levee board the sum of $ 40,000, and that the time for making his statement in January, 1892, had not arrived; that no safe was provided him for keeping the money and that he deposited the same for safe-keeping in the bank of Greenville to his credit as tax-collector, to await the arrival of the time for him to pay it over to the parties entitled thereto; that said bank had large and strong vaults and time locks, and said Griffin had no reason to doubt that the money would be safe therein, or to suspect that it would be used by said bank. But that on December 22, 1891, the said bank failed, having used the money of plaintiff therein, without the consent of said Griffin, and that he had never been able to recover any portion of the same, though due diligence had been used in that behalf; that said Griffin was guilty of no negligence in selecting said bank as bailee and depositing the money therein.

To both of these pleas demurrers were sustained. Defendants declined to plead further, and judgment was entered in favor of plaintiff for $ 5,287.35.

Affirmed.

J. H. Wynn, for appellants.

The court erred in sustaining the demurrer to the plea in abatement. 1 Chitty on Pl., 454; 3 Ib., 906, 907; 1 Bouvier's Law Dict., 143; Story on Eq. Pl., §§ 736, 742; 8 Am. & Eng. Enc. L., 549 et seq.

The two suits are between the same parties. The chancery court had full jurisdiction to grant relief. The defendant had answered the bill therein, and the suit was pending for the same cause of action. The result in both suits depends on the same state of facts. In 8 Am. & Eng. Enc. L., § 10, it is said that it has been held that a pending chancery suit cannot be pleaded in abatement of a suit at law, citing 16 Vt. 216. There are other cases of like import, but an examination of them will show that the relief in chancery was not as complete as at law. In 84 Am. Dec., 455, note, it is said that the action will not be abated because of the pendency of another suit, unless both suits are in courts whose scope is identical.

The constitution of 1890, § 161, gives to the chancery court concurrent jurisdiction with the circuit court of suits on official bonds. Here the chancery suit is dependent on no equitable grounds. That court can grant full relief.

In 40 Miss. 499, it is said that the general rule is that a party will not be allowed to sue at law and in equity at the same time for the same debt. But this rule applies only when a demand at law and in equity is equally personal.

Here the real plaintiff is the same in both suits. Recovery in either would be for the benefit of the levee board. If the revenue agent succeeds in the first, the levee board cannot refuse to accept the money collected by him.

The revenue agent has full power to sue. State v. Hill, 70 Miss. 106. If there is any question as to his right to retain twenty per cent. of the recovery, that will not affect his right to maintain the suit.

Yerger & Percy, for appellee.

1. The plea does not show a recovery in the former suit, or that defendants had paid the amount therein demanded. Oldham v. Ledbetter, 1 How. (Miss.), 43.

Two suits may be maintained for the same cause, and can be prosecuted to judgment, but only one satisfaction can be had. 22 Ark. 379; 8 Abb. on Prac. (N. Y.), 256.

It is no defense that two judgments may be rendered. Defendants can protect themselves by...